Papp & Myers (No 3)
[2022] FedCFamC1F 1024
Federal Circuit and Family Court of Australia
(DIVISION 1)
Papp & Myers (No 3) [2022] FedCFamC1F 1024
File number: SYC 5372 of 2018 Judgment of: HENDERSON J Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – CHILDREN – Orders – Contravention – Where the mother has previously been found guilty without reasonable excuse for nine counts of breaching final orders – Where the father sought orders to vary the final orders inter alia – Where a Child Impact Report identifies a risk if the father recommenced time immediately – Where the risk appears to be caused by the conduct and subterfuge of the mother – Orders made for the parents and the child to attend upon reportable intensive family therapy inter alia.
FAMILY LAW – COSTS – Between parties – Discretion – Where the father sought an order for the mother to pay his costs on an indemnity basis – Where the mother opposed such an order – Consideration and application of relevant factors under section 117(2A) of the Family Law Act 1975 (Cth) – Circumstances justifying order – Where the Contravention Application was necessitated by the conduct of the mother – Where the mother was wholly unsuccessful for the nine grounds of contravention pressed – Where the conduct of the mother amounted to a subterfuge – Discretion to be exercised for costs – Consideration of principles of indemnity costs – Where the circumstances of the matter do not fall within the category of cases justifying indemnity costs – Order made for the mother to pay the costs of the father on a party/party basis.
Legislation: Family Law Act 1975 (Cth) s 102NA, 117(2), (2A)(c), (2A)(d), (2A)(e).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13.
Cases cited: Donaghey & Donaghey (Costs) (2012) 47 Fam LR 306; [2012] FamCA 231.
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116.
Lenova & Lenova (Costs) [2011] FamCAFC 141.
Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178.
Papp & Myers [2020] FamCA 127.
Papp & Myers [2022] FedCFamC1F 936.
Papp & Myers (No 2) [2022] FedCFamC1F 937.
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4.
Rankin & Rankin (No 3) [2019] FamCAFC 133.
Worth & Worth (No 2) (2019) FLC 93-910; [2019] FamCAFC 126.
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 14 December 2022 Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Michael Conley Lawyers Counsel for the Respondent: Mr Antill Solicitor for the Respondent: Jack Rigg Solicitors ORDERS
SYC 5372 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAPP
Applicant
AND: MS MYERS
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
14 DECEMBER 2022
THE COURT ORDERS THAT:
1.The father and mother do all acts and things necessary to attend upon and participate with X (“X”), born 2015, in Reportable Intensive Family Therapy with Dr WW with such therapy to occur over the course of a four-day period between 29 April 2023 to 2 May 2023.
2.For the purpose of Order 1 above, such Reportable Intensive Family Therapy is to occur in Town B.
3.In order to facilitate Dr WW’s therapy:
(a)Each party is granted leave to provide to Dr WW copies of:
(i)The documents filed by the parties in the proceedings;
(ii)Any orders made by the Court in the proceedings;
(iii)Judgment of Justice Harper dated 22 May 2020;
(iv)Judgment of Justice Henderson dated 2 December 2022; and
(v)Any documents produced on subpoena;
(b)Each party do all things to attend upon Dr WW for such time as she recommends; and
(c)Each party do all things to facilitate the attendance of X upon Dr WW for such time as she recommends.
4.The father will pay all necessary fees to Dr WW and the mother will reimburse for one half of all costs associated with that therapy, including the father’s travel and accommodation costs, upon receipt by her of the relevant invoices and documents, and to be paid by 16 June 2023.
5.The mother is to attend every therapeutic event as directed by Dr WW and is to facilitate X attending on each and every occasion with Dr WW as she requires.
6.The mother is to sign the letter directed to Xs’ school marked as ‘Annexure A’ to the father’s Minute of Order and return same to the father within 7 days of the date of these orders.
7.In the event the mother fails to comply with Order 6, then a Registrar of the Federal Circuit and Family Court of Australia pay, pursuant to section 106A of the Family Law Act 1975 (Cth), sign the letter in lieu of the mother.
8.The mother is to pay the father’s costs on a ‘party/party’ basis in the sum of $48,457 by 16 June 2023.
9.If the father files an Initiating Application, that matter is to be listed before Justice Henderson for case management, to obtain the earliest possible trial, which trial will be conducted by a Justice other than Justice Henderson.
10.Order 3 of the orders made on 2 December 2022 be varied to read:
“Pursuant to Order 2, the respondent is to attend upon a Registrar of the Sydney Lismore Registry of the Federal Circuit and Family Court of Australia by
10.00am on 144.00pm on 16 December 2022 to enter into the bond.”
AND THE COURT NOTES THAT:
A.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in ‘Annexure A’ and those particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Papp & Myers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
HENDERSON J:
This was a hearing after a Contravention Application on the question of whether final orders made by Harper J on 22 May 2020 (“the final orders”) should be varied following my finding that the mother was guilty at a prima facie level of 18 counts of breaching the final orders and had failed to establish a reasonable excuse for nine counts that were pressed by the father.
On 23 September 2022, I found the mother had a prima facie case to answer on the 18 counts of contravening the orders which had been pleaded in the father’s contravention application filed 20 August 2021.[1] On 10 November 2022, I heard the mother’s reasonable excuse in respect of all counts. Only nine counts were pressed by the father ultimately. I found the mother guilty of contravening the final orders in respect of all counts detailed and delivered my judgment on 2 December 2022.[2]
[1] Papp & Myers [2022] FedCFamC1F 936.
[2] Papp & Myers (No 2) [2022] FedCFamC1F 937.
I had ordered a Child Impact Report be prepared to assist me in the event I found the mother had contravened the final orders, given the child had not spent time with the father for two years. This report was released with my judgment of 2 December 2022 to the parties and I only read that report upon the release of my judgment.
The father had initially sought that the final orders of Harper J be varied and time with his son and he commence with some therapeutic intervention. However, after receiving and reading the Child Impact Report dated 5 August 2022, he amended his position given the concerns as to the impact on his son of forcing time at this particular stage and X’s functioning as has been set out in the report.
Mr Longworth acted for the father and Mr Antill for the mother under the section 102NA scheme and arrangement. The father’s Minute of Order sought that I make an order for reportable intensive family therapy with Dr WW in Town B, where X and his mother live, orders to provide certain information to Dr WW, including documents produced on subpoena, that the parties attend upon her for such time as she recommends and they facilitate X attending, and that they each pay half of her costs. The father, wishing this therapy to commence sooner rather than later, said he will initially pay those costs, which he assesses about some $17,500, and asks that the mother at some point in time pay half of those costs, and he sought his costs for the contravention hearing.
MATERIAL READ
I have read the following:
(1)The Child Impact Report dated 5 August 2022; and
(2)My judgment of 2 December 2022.
The exhibits were:
(1)The Child Impact Report (Exhibit C1);
(2)The curriculum vitae of Dr WW (Exhibit F1);
(3)A document completed by the mother for X, being his enrolment at XX School dated 7 October 2021 (Exhibit F2); and
(4)An email from the mother to the Registry regarding her non-attendance today (Exhibit M1) as I had ordered for her to enter into a bond. This email was sent on 13 December 2022 at 1.28pm – today is 14 December 2022.
FINDINGS
I heard submissions from the parties’ legal representatives.
Consistent with the mother’s previous conduct, save for 23 September 2022 and 10 November 2022, the mother did not initially appear despite orders to do so. When she did appear, it was via the telephone and she sought an adjournment, which I refused.
The Child Impact Report is both helpful and disturbing, and I will read from that report.
The Family Consultant sets out the concerns regarding the child, X, age seven.[3] He lives with his mother and spends no time with his father, nor does he have any contact with him, and the primary dispute between the parents is in relation to X not spending time with his father.
[3] Exhibit C1 at [1].
The Family Consultant says:
[X] resides with his mother and maternal grandparents in the grandparents’ home in [Town B]. [X] identified his family consisting of his mother, ‘Grandad’, ‘Granny’ and the family dog ‘[…]’. When [X] was asked about having a father [X] stated “I don’t have a dad”; advised his mother told him he does not have a father and that when he was “first born I didn’t even see a dad”. [X] said “I’m fine with my family, I don’t really need a dad”.[4]
(As per the original)
[4] Exhibit C1 at [4].
Now this is a concern, that is, X’s comments, given the final hearing conducted before Harper J, in which his Honour made extensive orders and findings on the evidence tendered by the parties and their cross-examination, including the recommendations in a family report which his Honour relied upon. These current comments of the child are particularly concerning, given the final order of Harper J, which I will paraphrase as follows:
(1)That the parents, Mr Papp (the father) and Ms Myers (the mother) have equal shared parental responsibility.
(2)That the child is to be known as X, as he is described on his birth certificate.
(3)That the mother was permitted to remain in Town B with the child, where she lives with her parents.
(4)That the child was to spend time with his father in Sydney and Town B, increasing to ultimately overnight periods and significant overnight periods, including holiday time.
In relation to the final orders, the mother has spectacularly failed to implement any of his Honour’s orders as to parental responsibility and time with the father, as is clearly set out in my judgment of 2 December 2022.
The Family Consultant continues in her very helpful report setting out the mother’s position.[5] The primary concern of the mother is the risk of harm the father poses to X due to anger management issues, and she set out a list of complaints made about the father while she was pregnant, all dealt with by his Honour.
[5] Exhibit C1 at [8].
The mother believes the father wants to spend time with X to see her and then extraordinarily says this is evidenced by the father not attempting to collect X from school as per the Court orders. In my decision published on 2 December 2022, I set out the steps the mother had taken to ensure X did not even attend school as he should have done in 2021 and found that the reason for that conduct was to prevent the father from collecting the child from school.[6] That was an extraordinary statement for the mother to make.
[6] Papp & Myers (No 2) [2022] FedCFamC1F 937 at [118].
The mother believes the father continues with litigation as a form of punishing and controlling her, that he is an extremely complex man and travels incessantly when he is angry, that X has been exposed to his father’s behaviours and due to the fear has refused to leave his mother. The father has denied any violence.
The Family Consultant says:
Exposure to family violence and/or high levels of parental conflict increases [X’s] risk of developing emotional, social and behavioural problems, both in the short and long-term. Intense parental conflict and potentially child abuse, as [X] is alleged to have experienced, may have a negative impact on [X’s] sense of safety and security; and subsequently contribute to his negative view of, and reluctance to spend time with the father.
The father’s primary concern is the psychological impact on [X] of not having a relationship with him. The father is concerned the mother may be “alienating” the father and negatively influencing [X’s] view of him. The father said he is “scared” to insist on contact or time with [X], due to the parental conflict and feels it “counter-productive to [X’s] wellbeing” to attempt to ‘force’ [X] to spend time with him.[7]
(As per the original)
[7] Exhibit C1 at [10]–[11].
The Family Consultant states that during the interview, X initially said he does not have a father, and when the Family Consultant explored who Mr Papp was, he was resolute that the father was undeserved to be his father, that the father was not involved with X since birth, that the father only cared about Court orders and had yelled and threatened the mother with incarceration.[8]
[8] Exhibit C1 at [12].
It is reported X said his father pinched him twice but could not quite point out to the Family Consultant where this happened or how it happened. He could not remember whether his father had pinched him, but said children always remember the bad things that happen to them.[9] This was explored by the Family Consultant with X replying:
… the mother had told him he will always remember these “bad things” and wanted to know if this was “true”. [X] said he remembers being “pinched” stating “I was 4 or 5 or 6, I don’t know, he’s just angry, I have never liked him, I don’t like him”.[10]
(As per the original)
[9] Exhibit C1 at [13].
[10] Exhibit C1 at [13].
He described his father as:
… not even a dad to anybody, he just hurts people” followed by “I swear this is happening”. … [X] said there was nothing the father could do to change [X’s] view of the father, “even if he was nice”.[11]
(As per the original)
[11] Exhibit C1 at [14].
The Family Consultant opined that:
[X’s] absolute views of the father and his knowledge of adult matters are of concern, particularly given [X] has not spent significant time with the father since late 2019, when [X] was approximately 4 years old. [X’s] use of corresponding language, to that of the mother, potentially indicates [X’s] view of the father and recollection of events has been influenced either directly, or indirectly, by the mother. If [X] is being subjected to parental rejection of the father, and alignment to the mother, he is at risk of significant psychological and emotional harm with the loss of a safe parent-child relationship.[12]
(As per the original)
[12] Exhibit C1 at [15].
X told the Family Consultant when there was an aborted attempt to have him changeover at ZZTown with multiple adults being involved, his mother was at the changeover with the maternal grandfather and two friends to “protect” him from the father.[13] The Family Consultant opined:
… it is not considered in [X’s] best interest to attend changeovers in this manner; and it is concerning that [X] believes the company of the mother attended to “protect” him. This experience would have been very likely confusing and distressing to [X] who, if the mother is to be believed, encourages [X] to spend time with the father whilst also exposing [X] to the need for protection in the father’s presence.[14]
(As per the original)
[13] Exhibit C1 at [19].
[14] Exhibit C1 at [20].
It is extraordinary that the mother would say these things when the child has been living with her full-time since 2019 and the words he uses can only come from her. It cannot have come from anyone else, including his father.
The Family Consultant says:
It is noted that it is court ordered that [X] spend time with the father on 20 and 21 August 2022, with changeover to occur at [Town A Airport]. Whilst there is no identified immediate risk of harm to [X] posed directly by the father, [X’s] emotional and psychological safety is paramount. In the interim, [X’s] wellbeing may be detrimentally impacted on if required to spend time with the father.[15]
(As per the original)
[15] Exhibit C1 at [21].
The father has taken that on board in amending his orders, in a child-focused way and demonstrating he is and safe parent.
The Family Consultant states:
… [X] … presented as deeply aligned to the mother. [X] is at risk of losing the capacity to give and accept love from his father as he matures, if he continues to hold his current views.[16]
(As per the original)
[16] Exhibit C1 at [23].
The Family Consultant opines importantly:
[X’s] negative view of the father is not considered to be congruent with his age and stage of development nor given the limited time spent with the father. [X] views are not considered able to be afforded significant weight by this Court. [X] is vulnerable to potentially rejecting the father, based on the intensity of his views and stage of development. During interview, when asked whether he thought the father may like or even love him, [X] replied, “I don’t know if he likes me much”. The potential for increased anxiety, depression and feelings of insecurity may detrimentally impact on [X’s] life trajectory.[17]
(As per the original)
[17] Exhibit C1 at [24].
The mother’s approached was referred to by the Family Consultant:
During interview the mother spoke of various people, including professionals, who confirm her view of the father …[18]
[18] Exhibit C1 at [25].
(As per the original)
That is simply incorrect. There has been no professional who has confirmed her view of the father:
… and believes she has been unable to provide the Court with the evidence necessary to have “the Orders changed” due to “insufficient” legal representation. …[19]
(As per the original)
The mother did not file an appeal and has not filed any application to set them aside:
… The mother was not open to the possibility [X] may be being influenced by her views of the father, directly or indirectly, and believes [X] is genuinely fearful of the father based on the father’s “anger”. The mother believes an expert report in previous proceedings [before Harper J] “got it wrong” in relation to the quality of the father-son relationship … and was unable to identify any benefit of [X] having a relationship with the father.[20]
(As per the original with clarification)
This opinion was confirmed by her before me.
[19] Exhibit C1 at [25].
[20] Exhibit C1 at [25].
The father has proposed intensive family therapy before time resumes; an appropriate and proper child-focused approach. The mother objected to the choice by the father of Dr WW, whose qualifications are outstanding and her curriculum vitae was tendered in these proceedings.[21] The mother put no other person forward. The mother is still unable to accept professionals, such as a judge, a family consultant, psychologist, exercising their independent professional judgment and do not follow one party’s position and make recommendations they believe are correct, which may conflict with one of the parties’ positions. This view includes her own psychologist, Dr YY. I referred to this concerning attitude of the mother in my judgment of 2 December 2022 wherein I said:
193The mother brought ADVO proceedings against the father in [Town B]. At that time, the mother was seeing [Dr YY] and she asked her to prepare a report for those ADVO proceedings. …
194The notes from 22 June 2021 reveal the mother was most unhappy with [Dr YY’s] report prepared for the ADVO proceedings.
195Under cross-examination, the mother initially denied she had asked [Dr YY] to prepare a report at all. When caught out in this lie, the mother said she did not think the one page, three paragraph letter[ Dr YY] wrote was a report, despite the fact it is begins with:
This report is produced …
(Footnotes omitted)
[21] Exhibit F1.
Intensive therapy is clearly required, and given the father will initially pay these costs, that Dr WW is both independent and well-qualified, the father never having met her, and the mother puts forward no one else, I will make those orders as sought by the father. I will also in my orders make an order that the mother is to attend in-person or as directed by Dr WW on each occasion, and she is to ensure the child also attends if required by Dr WW. It is of real concern that the mother continues to prioritise her position vis-à-vis the father and not the child’s position and his right to be known and cared for by both his parents, even with the insight of the Child Impact Report having been received by her and his Honour’s excellent decision of 22 May 2020.
The mother objected to signing a letter directed to X’s school and annexed to the father’s Minute of Order. The letter is necessary to correct the mistruths the mother told the school in her unilateral decision in enrolling the child in 2021 and completing the form. The mother objects to the child being known as X, despite that being his name on his birth certificate and Harper J having ordered he be known by that name.
If the mother chose not to use that name when she enrolled the child at the school, this is her problem to resolve for her child. To now argue the child will be distressed if ‘Papp’ is now recorded as his hyphenated name is not supported on the evidence. The mother is well-capable of dealing with that issue for her son and making X understand why this is happening, as I accept the Child Impact Report stating that he is closely aligned with his mother. As I said in my judgment of 2 December 2022, if the mother wants it to work for X, it will.[22]
[22] Papp & Myers (No 2) [2022] FedCFamC1F 937 at [138], [183].
The mother did not want the child to be part of the consent publication at his school, and his father does. The mother proffered no reason why this innocuous permission should not occur other than when she filled out the general permission note on 7 October 2021, she said ‘no’ to this question. Again, consistent with my finding in respect of schooling that the mother acted with subterfuge[23] and the findings of Harper J that she was not a credible witness and manipulative,[24] I am satisfied the mother answered ‘no’ in that initial form to further thwart the father finding out about the child at school. The letter annexed is to be signed by the mother, and it is to be signed and returned to the father within seven days, and if not, a registrar of this Court will be authorised to sign in her stead.
[23] Papp & Myers (No 2) [2022] FedCFamC1F 937 at [118]–[119].
[24] Papp & Myers [2020] FamCA 127 at [99], cited in Papp & Myers (No 2) [2022] FedCFamC1F 937 at [92].
Further, I will include the letter as part of a separate order I will issue, which order the father can immediately forward to his son’s school so these errors can be corrected. The father will initially pay the costs of the intensive therapy, which includes his cost of travelling to Town B and accommodation, as the therapy is for four days, and this may amount to some $17,500. The mother has six months to pay one half of the ultimate cost of this therapy, and that sum is to be paid by no later than 16 June 2023.
The father has made an application for costs for the whole of the contravention proceedings. In my judgment of 2 December 2022, I set out a short history of the matter in respect of the contravention.[25] The matter was initially listed for hearing on 29 November 2021 and could not proceed because the mother’s first set of lawyers handed back the brief. I never really found out why or when, with the second set of lawyers only coming onto the record on 25 November 2021.
[25] Papp & Myers (No 2) [2022] FedCFamC1F 937 at [9].
The matter was adjourned in Chambers on 15 February 2022 to allow the mother to appeal the decision to dismiss her grant of Legal Aid.
The matter was listed for hearing on 18 May 2022. The mother attended via telephone from a hotel room in Sydney with the child being present, claiming she was unwell and could not attend Court. The father, quite frankly, mortified that his son was with her in the room hearing the proceedings, conceded the hearing could not proceed in the presence or the hearing of the child.
The matter was listed for 22 and 23 September. However, 22 September 2022 was declared to be a public day of mourning for the passing of the Queen, and again the matter was adjourned. The mother’s conduct was cause of the 9 May 2022 adjournment, and consistent with her application before me today, the adjournment was made on the very day the matter was meant to be heard.
The father seeks his costs on an indemnity basis, which sum amounts to an eye-watering $146,248, or in the alternative, on a party/party basis of $48,457, or as assessed. I have been provided, as is required under rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules), all information that I need, which includes the costs agreement that the father has entered into with his lawyers and the costs that he has incurred in a spreadsheet format, as well as supported by invoices. Providing those important documents to the Court is an imperative in an application for indemnity costs, as set out in rule 12.13(4) of the Rules.
THE LAW
The law in relation to costs is under section 117 of the Family Law Act 1975 (Cth) (“the Act”). The usual order is pursuant to that section that each party bear their own costs. However:
117 Costs
…
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
In considering a costs application, one must take into account the matters under section 117(2A) of the Act:
117 Costs
…
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings …
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The first question is whether there circumstances justifying a departure from the usual practice to order costs. I find there are for the following.
The proceedings were necessitated by the mother’s failure to comply at all with the Court’s orders.[26]
[26] Family Law Act 1975 (Cth) s 117(2A)(d).
The mother has been wholly unsuccessful in her allegation there was no prima facie case to meet in respect of all counts and wholly unsuccessful in relation to her reasonable excuse in respect of counts 1–6, 8, 10 and 12.[27]
[27] Family Law Act 1975 (Cth) s 117(2A)(e).
The mother’s conduct, which I found amounted to subterfuge and was not believable at any level, is highly relevant.[28]
[28] Family Law Act 1975 (Cth) s 117(2A)(c).
Therefore, there are circumstances which operate on my discretion to depart from the usual practice, and I will make a costs order given the existence of these facts.
The question is whether I make an indemnity costs order or otherwise. The law is settled in relation to indemnity costs; Limousin & Limousin (Costs)[29] as I was referred to as relevant authority. Decisions such as Kohan and Kohan[30] are still good law in relation to the Court’s discretion to award indemnity costs and the factors which weigh upon a judge’s exercise of that discretion.
[29] (2007) 38 Fam LR 478.
[30] (1993) FLC 92-340.
I am permitted to make an order for a party to pay a specific amount, but I should not attempt a taxation of costs.[31] It is a very wide discretion.[32] Decisions of the Full Court such as Rankin and Worth & Worth (No 2)[33] are authority for the Courts power to award costs on an indemnity basis, solicitor/client, party/party, scale, or costs as assessed by a registrar, and as always, in family law proceedings, each case turns on its particular and unique facts.
[31] Rankin & Rankin (No 3) [2019] FamCAFC 133 at [23] (Strickland, Kent, and Austin JJ) (“Rankin”).
[32] Penfold v Penfold (1980) 144 CLR 311.
[33] (2019) FLC 93-910.
Are the matters I have referred to, exceptional circumstances? Are they so out of the ordinary to justify me ordering an indemnity costs order?
Although I found the mother’s conduct amounted to subterfuge regarding parental responsibility and the child’s enrolment at school and that her conduct, not that of the father, was harming the child, I do not see that this matter falls into the category of exceptional or out of the ordinary at this time.
I do not accept the submission of Mr Longworth of counsel that the mother’s conduct falls into a category such as in the decision of Donaghey & Donaghey (Costs)[34] – a decision of Murphy J – where the mother secreted the child from the father and authorities, although there are some parallels, of course. Therefore, I will not order costs on an indemnity basis.
[34] (2012) 47 Fam LR 306.
I accept the mother has no financial resources and the father has. However, impecuniosity is no bar to making costs orders if the Court believes they should make the order.[35] The mother has had legal representation provided at no cost to her and caused the father to incur significant costs to enforce orders made after a final hearing without any excuse, let alone a reasonable excuse, put forward by her or accepted by the Court.
[35] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12] (Bryant CJ, Coleman, and Murphy JJ).
In those circumstances, it is proper the mother pay costs on a party/party basis as the father has set out in his material and I accept that is a sum of $48,457. The mother is to pay those costs within six months of today’s date or on or before 16 June 2023. This figure is some 30 per cent of the father’s actual costs incurred to enforce final orders of a judge of this Court, and that is an appropriate percentage for her to pay, given her conduct alone has caused this entire litigation.
The mother was required today to attend Court today to enter into a bond. She failed to do so. I accept her mother is gravely ill. However, the Court and parties were only notified of her intention not to attend and reasons yesterday, 13 December 2022. This is a feature of the mother’s conduct and attitude to the proceedings and the orders of this Court. I have arranged for the mother to appear before a Senior Judicial Registrar in Town MM by no later than 4.00 pm on 16 December 2022 to enter the bond, at which time the nature of the bond and its consequences in relation to any further breaches will be explained to her.
The mother is on notice. If she does not attend therapy or facilitate X attending as directed by Dr WW, the Court may consider she is in contempt of Court, and there may be consequences that flow, and I use the word “may”. It is an imperative the mother seeks the treatment she needs to disavow herself of her erroneous belief that the father is a risk of harm to the child, a violent, abusive, coercive parent. He acted in May 2022 in a child-focused, protective manner when the mother brought the child to Sydney with her, and conceded an adjournment, given the child was in the very hotel room with the mother, hearing what was said, and showed a child-focused, protective attitude.
The father took on board the Child Impact Report and the recommendations that forcing time now may be harmful psychologically to his son and proposed appropriate therapy and has agreed to pay for that therapy initially in order for his son to obtain the best possible treatment to assist him. It is clear and apparent the father wishes only to spend time with his son and has no focus on the mother, despite her continuing to say this. She said it at the hearing, and she said it in the Child Impact Report. It is the child the father is interested in, not the mother.
This is X’s right and it has been determined, as his right, by a judge of this Court. The mother must find her way to clearly provide X with the means to do this, that is, spend time with his father in a permissive environment when his mother does not make him fearful. I am certain the father poses no risk to the child at all. Sadly, the risk to X is posed by his mother and in her maintaining for X the view his father is dangerous and will hurt him when he is not and has not. This is psychological and emotional abuse and is destructive to a child’s development, as the Family Consultant referred to in the Child Impact Report.
If the father files an Initiating Application to vary the orders, it is to be listed before me initially for directions and case management to obtain a quick hearing before another judge. I will not ask the parties to go through the processes again in this Court before obtaining another hearing, and it is imperative if there is a hearing it is heard as soon as is possible.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 14 December 2022. Associate:
Dated: 24 January 2023
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